Daniel Borenstein: Despite their claims, Brentwood school district could have fired teacher in child abuse case

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Attorney Laurie Juengert gives a presentation on the legal challenges of firing tenured teachers, but steers clear of specifics on the Brentwood case at a Brentwood Union School District school board meeting in Brentwood, Calif. on Wednesday, Jan. 23, 2013. It was the first BUSD school board meeting since the $950K settlement over a special needs teacher who pulled a 5-year-old out of his chair and then kicked him. (Susan Tripp Pollard/Staff)

Margaret Kruse, assistant superintendent, steers her attention to other board members from her seat in the front row of the audience at a Brentwood Union School District school board meeting in Brentwood, Calif., on Wednesday, Jan. 23, 2013. It was the first BUSD board meeting since the $950K settlement over a special needs teacher who pulled a 5-year-old out of his chair and then kicked him. (Susan Tripp Pollard/Staff)

“You asked the students to come to circle time but one of your students, (J.), verbally refused. (J.) is a five year old preschooler, diagnosed with autism. (J.) was in a chair at a table cutting out papers for a project. You told him to clean up and sit down for circle time but (J.) kept telling you ‘no.’ You walked over to (J.) and grabbed him by the arm and pulled him from the chair. (J.) fell to the ground and was laying prone on his side. You forcefully kicked (J.) in the lower back or buttocks towards the circle area. He rolled and you kicked him again in this same area. The incident was witnessed by the Instructional Assistants in your room. One aide, Kelly Knapp immediately intervened and told you several times to stop. You did stop and as you walked away from the child you called him a ‘son of a bitch.’ The child was crying and the aides reported the child appeared shocked.”

— Document from Brentwood school district files on the May 25, 2010, attack by teacher Dina Holder on one of her students.

Within just a few days, Brentwood school officials knew what had happened in Dina Holder’s classroom. Two instructional aides witnessed the child abuse and provided written statements. Holder even confessed.

Yet district officials, who left Holder on the job for another 2½ years, and their attorney still claim they couldn’t fire her. They blame state law.

“I didn’t believe that we had sufficient documented grounds to succeed in a dismissal case,” assistant superintendent Margaret Kruse testified in a Dec. 3 deposition.

Their attorney, Laurie S. Juengert, in a Jan. 23 public presentation, suggested dismissal was not an option. In a child-abuse case, according to one of her slides, “assuming the teacher addresses the issues raised, shows remorse and never repeats the conduct, the District will have no grounds to move forward for termination.”

They’re wrong.

To be sure, teacher dismissals in California take too long and cost too much. And it’s always unknown how a required three-member hearing panel — consisting of an administrative law judge and two employees with teaching credentials who work outside the particular district — will rule. But it’s incorrect to claim state law bars firing of teachers after an incident like this.

Juengert’s bills for the days after the incident and her presentation suggest the district never tried to fire Holder. Whether that flawed strategy stems from Juengert’s legal advice or reluctance by Grant and Kruse to seek dismissal is unclear. None of them returned calls and email inquiries during the past few days.

Juengert is a private attorney. Her bills, released after a Public Records Act request, indicate that during the week after the abuse incident, she spent three hours talking with Kruse about a teacher discipline issue and interviews with witnesses, reviewing materials from Kruse, and preparing a “notice of unprofessional conduct.” The teacher’s name is withheld, but those are the only hours Juengert billed the district in the days after the incident.

Unprofessional conduct is one of the offenses for which a teacher can be disciplined or fired. But that charge requires that the district first provide the teacher “an opportunity to correct his or her faults and overcome the grounds for the charge.”

Alternatively, the law allows a district to directly initiate dismissal proceedings against a teacher convicted of a felony, convicted of any crime involving moral turpitude, or who displays “evident unfitness for service.”

It would be 16 months before Holder pleaded no contest to misdemeanor child abuse stemming from the incident. But the district could have moved from the onset to dismiss her for evident unfitness for service. Two legal experts who practice in this area told me that’s what they would have recommended.

District officials, while apologizing last week for some aspects of their reaction to the Holder abuse, have yet to acknowledge they could have fired her. It’s time to stop claiming their hands were tied.

Dan Borenstein is an award-winning columnist for the Bay Area News Group and editorial page editor of the East Bay Times. He has worked for the Times and its affiliated newspapers since 1980, including previous assignments as political editor, Sacramento bureau editor, projects editor and assistant metro editor. A Bay Area native, he holds master’s degrees in public policy and journalism from University of California, Berkeley.

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